Full Opinion (html_with_citations)

                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-16-00122-CR


                      RAMIRO VALENZUELA-RUIZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 181st District Court
                                    Potter County, Texas
              Trial Court No. 70,343-B, Honorable Richard Dambold, Presiding

                                  December 30, 2016

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Ramiro Valenzuela-Ruiz (appellant) appeals his conviction for aggravated

assault with a deadly weapon. The sole issue on appeal involves whether he received

the effective assistance of counsel at trial. He argues that he did not. We affirm.

      One claiming ineffective assistance of counsel bears a two-pronged burden. Not

only must he prove by a preponderance of the evidence that his counsel's

representation fell below an objective standard of reasonableness but also that the

deficient performance prejudiced him. Clayton v. State, No. 07-15-00312-CR,
2016 Tex. App. LEXIS 11988
, at *6-7 (Tex. App.—Amarillo November 4, 2016, no pet.)
(mem. op., not designated for publication). The failure to satisfy either prong warrants

denial of the claim. Id. at *7.

        Additionally, the record must affirmatively demonstrate the meritorious nature of

the claim. Id. at *8. The latter requirement is of particular import because we presume

trial counsel's performance fell within the range of reasonably professional assistance.

Id. at *6-7. That we must also be highly deferential to counsel's strategies, if any, is

equally true.    Id.   Simply put, we are not free to act as the proverbial armchair

quarterback and second guess, with impunity, what counsel should or should not have

done.     Consequently, revelation of counsel's trial strategies, if any, is of such

importance that when the record fails to do so, we have held it insufficient to overcome

the presumption of effective performance. Id. at *11-12; accord, Escobedo v. State, No.

07-15-00034-CR,
2016 Tex. App. LEXIS 11214
, at *4-6 (Tex. App.—Amarillo October

13, 2016, no pet.) (mem. op., not designated for publication) (first observing that in the

usual case, the record on direct appeal is insufficient to show that counsel's

representation was so deficient and so lacking in tactical or strategic decision making as

to overcome the presumption that counsel's conduct was reasonable and professional

and concluding that "[a]bsent evidence of counsel's strategy, we cannot denounce

counsel's actions as ineffective . . . .").

        Turning to the complaint before us, appellant asserts that:

        the defendant’s case was dependant [sic] on his credibility, and his ability
        to convince the jury that he did not shoot at [Josefina]. His attorney
        mounted zero opposition to a flood of extraneous evidence directly
        touching on his credibility and propensity to commit crimes—most notably
        a prior shooting incident that was very similar to the instant offense.
        Because counsel failed to seek notice, failed to seek limiting instructions
        and failed to lodge any objections to the extraneous offenses, his
        representation can only be categorized as ineffective.



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In so arguing, little is said in his brief about how the purported deficiency caused him

prejudice.       We note this not only because such was required to prove a claim of

ineffective assistance but also because of the trial's outcome. The proceeding melded

two indictments into one trial.            Not only was appellant being tried for threatening

Josefina with serious bodily injury while exhibiting a deadly weapon but also with

discharging a firearm (on or about the same day) at Josefina's husband, Chris. 1 Yet,

the jury found appellant guilty of only one of those crimes. Despite appellant's credibility

supposedly being crucial to his defense and the suggestion that admitting the

extraneous offenses undermined that credibility, the jurors decided to acquit appellant of

firing a weapon at Chris. This circumstance coupled with the absence of substantive

analysis on the element of prejudice bars us from concluding that appellant established

that but for the alleged ineffectiveness there existed a reasonable probability of a

different outcome. See Ex parte Torres,
483 S.W.3d 35, 43
 (Tex. Crim. App. 2016)

(stating that the appellant is prejudiced as a result of counsel's errors when, but for

those errors, there is a reasonable probability of a different outcome); Williams v. State,

No. 14-13-00708-CR,
2015 Tex. App. LEXIS 10491
, at *20-21 (Tex. App.—Houston

[14th Dist.] October 13, 2015, pet. ref’d) (mem. op., not designated for publication)

(holding that the appellant failed to satisfy his burden to prove prejudice because his

brief did not "point to objective facts in the record to support any lack of confidence in

the conviction, i.e. proof of prejudice"); Bessey v. State,
199 S.W.3d 546, 555
 (Tex.

App.—Waco 2006), aff'd in part on other grounds,
239 S.W.3d 809
 (Tex. Crim. App.

2007) (overruling claim because the appellant made "no effort to demonstrate how the

record demonstrates prejudice under Strickland's second prong.").

         1
             According to the record, Josefina was appellant's paramour while married to but separated from
Chris.

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       Of further note is the absence of opportunity being afforded trial counsel to

explain his trial strategy, if any, pertaining to the extraneous offenses. See Menefield v.

State,
363 S.W.3d 591, 593
 (Tex. Crim. App. 2012) (stating that "[i]f trial counsel is not

given that opportunity [to explain his conduct], then the appellate court should not find

deficient performance unless the challenged conduct was 'so outrageous that no

competent attorney would have engaged in it,'" and concluding that because neither the

State nor defense counsel were given a chance to respond to the allegation of

ineffectiveness the record failed to show deficient performance). It may well be that trial

counsel remained silent due to a risky, though acceptable, strategy. And, we cannot

say that his conduct was so outrageous that no competent attorney would have

engaged in it, especially in view of the success he met in presumably adopting a

strategy resulting in an acquittal for one of the two crimes being tried.

       The issue is overruled, and the judgment is affirmed.



                                                                Per Curiam



Do not publish.




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